Separation of powers

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The question asked for our opinion on whether a good balance has been struck between the powers of executive vis-à-vis the legislature and the judiciary. My view on this is that there is a well-administered balance between the three powers.

The theory of separating those three powers was raised by a political thinker Montesquieu in the 18th century. In his work The Spirit of Laws he suggested that executive, legislative and judiciary powers must be entrusted separately to different personnel. If the authority exercised is in excess of that permitted by law, it should be checked by the other in order to restrain its encroachments. And this is the correct meaning of le pouvoir arrête le pouvoir —power halts power. There must be a separation of powers within the structure of government in order that one power may operate as a balance against another power. Such a check Montesquieu considered necessary for safeguarding the liberty of the individual and for avoiding tyranny.

To examine whether there is a balance on the mentioned powers, we must know how the three powers are separated and distributed. In Hong Kong, the three powers are distributed according to the Basic Law as described below:

Executive: executive power is conferred on the Chief Executive and the executive authorities of the Region (art 48,62,63),

Legislative: the power of making laws is conferred on the Legislative Council (LegCo) (art 73),

Judiciary: the power of interpreting laws and making adjudication on legal dispute is conferred on the courts of the HKSAR at all levels (Court of Final Appeal and other courts and tribunals) (art 80).

Even though the basic law does not contain the term ‘separation of powers’, courts have been prepared to interpret the constitution as implicitly incorporating the doctrine of the separation of powers on the basis of the constitution division of power into different branches of government and a system of checks and balances. In his article, Executive Orders and the Basic Law  Professor Wesley-Smith said:

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“... the separation of powers is implicit in the design of our constitution [the Basic Law]. As in the United States, 'The principle of the separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document ...' "

The powers and functions of the three branches are stipulated in chapter IV of the Basic Law, including the power to monitor and restrict the other branches, which is the system we called ‘checks and balances’.

For instances, between the executive power (Chief Executive) and the legislative power (LegCo), it is ...

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